BAR/BRI and Kaplan sued for illegally dividing LSAT and bar exam test-prep market
By Anayat Durrani
Law Crossing Staff Writer
Archived Article OCTOBER 2005....

The April 29 lawsuit against the country's biggest bar exam and LSAT preparation companies, filed as a class-action lawsuit in the U.S. District Court for the Central District of California, alleges that BAR/BRI and test-preparation company Kaplan, Inc., agreed to illegally dividing the LSAT and bar exam test-preparation market.
The suit claims that under the alleged agreement, BAR/BRI withdrew from the LSAT preparation business and Kaplan agreed not to enter the bar-review course market. The complaint charges that "without substantial competition, BAR/BRI's net prices per student then increased substantially in most states." It claims that from 1997 to the present, Kaplan and BAR/BRI "have concealed their conspiracy to divide the market." The lawsuit claims BAR/BRI students were overcharged about $300 million since August 1997 and said customers may deserve $1,000 each in refunds.
"I do think it's curious that there's a single dominant provider nationwide," said Eric Goldman, a law professor at Marquette University Law School. "There's no indicia that the bar exam-preparation market is a natural monopoly, and most other test-prep areas have competition. So why is there only one dominant vendor in the bar exam-preparation area?"
For law students facing the bar exam, BAR/BRI is a giant in bar-review preparation. BAR/BRI claims that it prepares more than 95 percent of all students sitting for the bar exam in any year.
"I, for one, would definitely appreciate some more competitive pricing," said David N. Oskin, a law student at Chicago-Kent Law School who will be taking the bar next July. "The prices seem excessive, but people keep paying them because BAR/BRI appears to be the only reputable choice."
Oskin said he found some alternatives on the Internet, but BAR/BRI is the only one that he's seen at his school. He said BAR/BRI is very prominent at his school and enlists student representatives to help them spread the word about the bar-prep company.
"It seems to be the school-sanctioned choice, and I don't know anyone who has signed up for another method," said Oskin.
Like Oskin, University of Arizona College of Law student Jared Hautamaki said that though there are other prep courses available, they are not in schools, like BAR/BRI is. He said BAR/BRI recruits and pays students to try to get other students to sign up. He said many students have signed up and attend review sessions and materials in each of the class topics-Contracts, Property, etc.-that Bar/Bri provides to early signups.
"[They're a] Big Dog because of access, reputation, size, and market share. They're everywhere," said Hautamaki, a first-year law student. "Eventually, everyone takes a bar-review course after graduation, but I'll cross that bridge when I come to it. No one has ever given me a definitive reason for one or the other."

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Kidder argues that the method for removing the biased questions is a primary contributor because the test presumes overall fairness. This in turn leaves biased questions on the test unchanged.
"His argument is that the LSAT is unfair to minorities, but it's unfair to a lot of people. It only rewards school test-taking," said Michael Olivas, University of Houston (UH) law professor. "The problem's worse than he says. Now the regions passed a rule where we can't use race at all in the admission process. UH may overlook talented minorities," he said.
The Law School Admission Council has been making efforts to protect students from misuse of the LSAT. However, the rules have not been enforced for those who violate the policies, Kidder said.
The law schools' preoccupation with securing a favorable position in the U.S. News and World Report rankings, which are largely decided by LSAT scores, create an environment ripe for abuse, he said.
"It shows how well you do on a test on any given Saturday afternoon. I think that test-taking experience distinguishes Anglo students from minorities. There are strategies. Minorities have less access to resources and they have not done well historically," Olivas said.

By Deanna Sheffield

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Undeniable is the link between a candidate's LSAT score and their chances of passing the California bar exam on their first attempt. Yes, there are low-LSAT types that pass the bar on the first try, but such candidates are the exception rather than the norm. Chapman students have higher LSAT scores than Whittier and Western students. Simple as that. Looking at the campuses of the three schools, where would you go if your LSAT score gave you the pick of the three? With Chapman on the scene, Whittier and Western will have great difficulty luring high-LSAT types their way-which means the bar-pass rates of the two schools will most likely be stuck in low-low land, unless their students change their mindset.
More times than not, an LSAT score is a good indicator of whether a candidate will pass the California bar exam on their first attempt. Can a low-LSAT score be overcome? Yes. How? First, the law student must realize that they fall into a statistical category that doesn't necessarily pass the California bar exam on the first attempt. Second, the law student must truly investigate the bar-exam process. Taking the course that everybody takes without much more effort than listening to uneducated "word-of-mouth" in the student lounge is not the best way to proceed. "Best-selling" does not mean "best". (Does America's best-selling beer taste the best to you?) If everybody at Whittier takes the course that everybody takes, and the ABA cited poor bar-pass rates as the basis for its decision, then why in the world would you flock like sheep to the course that might have let you and your school down?
To answer my headline, I blame the students. If a student has an LSAT score lower than 162, or has graduated from a non-ABA or unaccredited law school, they owe it to themselves to truly investigate what course will best help them with the process of passing the California bar-exam. A private tutorial or small-group setting, with an emphasis on the remedial, would best serve such a student. (Incidentally, if a student has an LSAT score higher than 162, the word-of-mouth advice can be heeded, without worry.) California is the nation's toughest bar exam. Setting aside six weeks to prepare for such an exam, especially when you have a less-than-stellar LSAT score or have graduated from a school with a horrendously low pass rate, is a recipe for disaster. Whittier's faculty is not to blame. Unless, of course, they seek a remedy through the course that everybody takes. Then, they'll be just as complicit (or complacent) as their students.

By Steve Liosi
Steve Liosi, publisher of the journal and former Chapman Law faculty tutor, can be reached via phone
(562) 536-9476 or
e-mail: steve@clsj1994.com.

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